NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. IN THE MATTER OF JR (2011)

J.B. appeals from two orders of the Chancery Division, Family Part, entered on February 1, 2010:(1) an order permanently placing her minor child, F.M., Jr., in the physical custody of his biological father, F.M., Sr., and awarding joint legal custody to F.M., Sr., and J.B.;   and (2) an order entered on that same date terminating the abuse and neglect proceedings.   We reverse and remand for further proceedings.

Appellant J.B. and defendant, F.M., Sr., are the parents of F.M., Jr., a minor born in June 2002.   F.M., Sr., and J.B. were never married, but shared joint legal custody of the child, with J.B. having physical custody.   On April 23, 2009, the New Jersey Division of Youth and Family Services (Division) received a referral from the Hamilton Township Police Department (the police) stating that after responding to an anonymous call, the police found J.B. smoking marijuana, with F.M., Jr., and several teenagers present in the home at the time.   Four bags of marijuana were found in the home.   The police arrested J.B. and charged her with possession of a controlled dangerous substance and endangerment of the welfare of a child.   As a result, the Division effectuated a Dodd emergency removal of F.M., Jr., pursuant to N.J.S.A. 9:6-8.29(a), and temporarily placed him with his maternal grandmother.

On April 27, 2009, the Division filed an Order to Show Cause and Verified Complaint against J.B. seeking an order to place F.M., Jr., in the custody, care, and supervision of the Division.   The father, F.M., Sr., was named in the complaint solely as a dispositional defendant.   At the April 28, 2009 hearing on the Order to Show Cause, the trial court granted the Division's request for care, custody and supervision of the child F.M., Jr., and granted temporary physical and sole legal custody to F.M., Sr., allowing J.B. weekly supervised visitations.¹  Before entering the order, the trial judge explained his ruling:

Under the circumstances and based upon the 9-7 from the police department and the Division's investigation, the execution of the Dodd was appropriate to grant the Division temporary custody on the 24th based upon the 9-7.   There were no reasonable efforts that could have prevented removal of the child under the circumstances of the referral.

[W]ith regard to continued custody, care and supervision today, that's not necessary.  [F.M., Sr.] who is the father of the child, is present in court.   The Division is willing to grant him temporary legal and physical custody until at some point down the road there can be a dispositional hearing which would ultimately decide whether or not the child should be returned to [J.B.].

And so I am going to grant that application today with the consent of the Division and the law guardian.   The Division will have care and supervision.   But it's clear this case was initiated as a Title Nine. It resulted in a removal.   It resulted in a placement with the biological father and ultimate disposition will be a dispositional hearing with regard to why or why not the child should not be returned to the mother.

On May 7, 2009, the matter returned to court for a hearing on the return of the Order to Show Cause.   An order was entered requiring F.M., Jr., to remain under the care and supervision of F.M., Sr., with J.B. entitled to supervised visits.

J.B.'s supervised visits started on June 27, 2009, and all reports documenting the visitations indicated they went well.   J.B. also volunteered for a fifteen-week parenting program which started on July 29, 2009, and was successfully completed with perfect attendance.   As of July 31, 2009, J.B. attended weekly or bi-weekly therapy sessions for her drug use and monthly meetings with a psychiatrist for her emotional issues.   In the therapy sessions, she “work[ed] on maintaining abstinence from substance abuse, anger management, parenting issues and improving her decision making skills.”   In addition, J.B. was admitted into pre-trial intervention on the charges from the April 23, 2009 arrest and was attending an outpatient drug treatment program with New Horizon Treatment Services, which started on September 10, 2009.   She was required to submit to weekly urine drug screening managed by Substance Abuse Initiative (SAI) and attend two hours a week of counseling in the program.   She also joined Alcoholics Anonymous on her own initiative.

In the interim, on August 13, 2009, the matter returned to court for a fact-finding hearing.   See N.J.S.A. 9:6-8.21 to -8.73 (Title Nine).   J.B. entered into a stipulation of abuse or neglect where she admitted that on April 23, 2009, she exhibited improper supervision for her son due to drug use in his presence, which caused a risk of harm.   That same date, the Division requested dismissal of the entire litigation on the ground that F.M., Jr.'s living arrangement with his father is in his best interest.   J.B.'s attorney objected to the dismissal and requested a dispositional hearing.   The trial court denied the Division's request to dismiss the litigation and noted that a dispositional hearing would be the appropriate procedure to address whether the child may return to J.B., pending a permanency hearing.

On November 19, 2009, the matter returned to court for a compliance review hearing, where the Division again requested dismissal of the litigation following a permanency hearing to be held that day.   The Law Guardian objected and informed the court that F.M., Jr., maintains a preference to reunify with his mother.   J.B.'s counsel also objected and stated that J.B. is complying the best she can in her attempt for reunification with her son.   The trial court declined to terminate the litigation and scheduled a permanency hearing for February 1, 2010.

The New Horizon urine drug/alcohol screening results report attached to the November 10, 2009 court report, submitted in connection with the November 19, 2009 hearing, stated that J.B. tested positive for marijuana on September 11, 17, 21, 29, and October 6, 13, 20, 27, and November 5, 2009.

According to the Division's December 4, 2009 court report submitted in connection with the February 1, 2010 permanency hearing, the Division caseworker stated that F.M., Jr., has enjoyed his monthly visits with his mother and J.B. continues to comply with her drug and mental health program.   The December 4 report also stated that J.B. tested positive for marijuana and opiates on November 13 and 19, 2009, but J.B. provided a valid prescription for oxycodone.

Additionally, the December 30, 2009 documents submitted by the Division in anticipation of the February 1, 2010 permanency hearing revealed that J.B. tested negative for all substances of abuse on November 25 and December 23, 2009, yet positive for marijuana on December 10, and 17.   The report dated January 5, 2010, included a letter of the same date from J.B.'s drug counselor at New Horizon, noting that J.B. had a ninety-four percent attendance rate “which indicates willingness to engage in the process of education about addiction and openness to recovery concepts.”

On January 25, 2010, J.B.'s counsel submitted a letter to the trial court, dated January 22, 2010, from J.B's mental health counselor indicating that she is making progress in abstaining from marijuana, and she expresses an interest in finding employment and regaining physical custody of her son.   Finally, drug screening results submitted on January 27, 2010 revealed that J.B. tested negative for all drugs on December 31, 2009, and January 11, 12 and 20, 2010.

On February 1, 2010, a permanency hearing was held and the court entered an order permanently placing F.M., Jr., in the physical custody of his father, F.M., Sr., and awarding joint legal custody to F.M., Sr., and J.B. On that date, the court also entered an order terminating the litigation.   The court further directed that J.B.'s visitations be supervised for thirty days, and thereafter be converted into unsupervised visitation.

The trial judge found significant that (1) “[J.B.] is a work in progress ․ she's made some improvement [but][w]hat that progress will mean down the road is unclear” since “relapse is a part of the process”;  (2) that J.B. was not in full or partial remission, since she tested positive for marijuana thirty days prior to the hearing;  (3) all of the child's needs are being met living with his father and he is making progress in school;  and (4) “the Division did its best to provide reasonable efforts” for reunification.   The trial court stated that F.M., Sr., and J.B. were not on equal footing with regard to their right to the child and found by a preponderance of the undisputed credible evidence “that the best interest is furthered by the plan put forth by the Division, namely to continue custody with [F.M., Sr.].”

On appeal, defendant raises the following issues for review:

POINT I:  THE TRIAL COURT ERRED BY NOT CONDUCTING A PROPER DISPOSITIONAL HEARING.

POINT II:  THE COURT ERRED BY TRANSFERRING PHYSICAL CUSTODY TO THE FATHER AFTER THE PERMANENCY HEARING.2

POINT III:  THE COURT ERRED BY PREMATURELY TERMINATING THE LITIGATION.

Our analysis of defendant's contentions are guided by well established legal principles.  “A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”  Manalapan Realty L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted).   However, family courts have special expertise in family matters and “appellate courts should accord deference to family court factfinding.”  Cesare v. Cesare, 154 N.J. 394, 413 (1998).   In particular, we give regard to the family judge's “opportunity to make first-hand credibility judgments about the witnesses who appear on the stand” and his or her “ ‘feel of the case.’ ”  N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

“Parents have a constitutionally protected right to maintain a relationship with their children.”  M.M., supra, 189 N.J. at 279 (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)).   That right, however, is not absolute, and “ ‘must be balanced against the State's parens patriae responsibility to protect the welfare of children.’ ”  N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citations omitted).

We first address J.B.'s challenge to the procedures utilized in resolving this Title Nine action.   J.B. submits that she was denied a dispositional hearing and thus deprived of due process in a fashion similar to that which occurred in N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009).   More specifically, J.B. contends that “merely placing the child in a safe home with a non-offending parent does not eradicate J.B.'s right to a dispositional hearing to determine if it would have been safe to return the child to her care.”   We agree.

In G.M., following a dispute between thirteen-year-old K.M. and her mother G.M., K.M. and her eleven-year-old brother C.M. were removed on an emergent basis from the mother's custody in New Jersey.  Id. at 388-89.   Following an emergency hearing, the trial judge found potential abuse or neglect due to the mother's consumption of alcohol, and awarded the legal custody of the children to the Division with temporary physical custody awarded to their father living in Florida.  Id. at 389.   After a fact-finding hearing was held, but before a dispositional hearing took place, the litigation was terminated.  Id. at 391-93.   Also before the litigation was terminated, the mother was led to believe that custody of the children would be returned to her.  Id. at 392.   On the day that the litigation was terminated, the Division reversed its original position recommending the children be returned to their mother if they wish to, and sought retention of custody by the father.  Id. at 393.   Following a proceeding in which no testimony was taken, no documents were introduced into evidence, and no fact-finding was undertaken, the court ordered that the parents share joint legal custody of the two children, with the father as the primary custodial parent with any change in custody to proceed through the matrimonial docket.  Ibid.

The Supreme Court held that “[t]he statutory framework of Title Nine provides that upon a finding of abuse and neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be.”  Id. at 387-88.   The Court explained that, as the result of the judge's failure to hold a dispositional hearing or afford the mother the opportunity to address the Division's change of position with respect to custody, the mother had been deprived of her due process rights and stated “[t]he key deficiency of the proceeding below was not in the failure to hold a custody hearing, but in the failure to hold a dispositional hearing.”  Id. at 401-02.   The Court further noted that “the availability of a non-custodial parent to care for the children does not alter the responsibility of the Division to follow the statutory framework for litigating a Title Nine action.”  Id. at 402 n.3.

In a dispositional hearing, the court must hear evidence to determine “whether the children may safely be released to the custody of [the parent against whom the FN case was brought] ․ or whether ․ some other disposition is appropriate.”  G.M., supra, 198 N.J. at 402;  see also N.J.S.A. 9:6-8.51. A dispositional hearing is defined as one that determines “what order should be made” in the litigation.  N.J.S.A. 9:6-8.45. Once the trial court decides whether the Division has sustained its allegations of abuse and neglect in a fact-finding hearing, a dispositional hearing immediately follows, N.J.S.A. 9:6-8.47(a), and steers the appropriate course of the case.  N.J.S.A. 9:6-8.50. N.J.S.A. 9:6-8.51(a) sets out a menu of dispositions available to the judge.

At the conclusion of a dispositional hearing under this act, the court shall enter an order of disposition:  (1) suspending judgment in accord with [N.J.S.A. 9:6-8.52];  (2) releasing the child to the custody of his parents or guardian in accord with [N.J.S.A. 9:6-8.53];  (3) placing the child [with a relative or other suitable person or the division] in accord with [N.J.S.A. 9:6-8.54];  (4) making an order of protection in accord with [N.J.S.A. 9:6-8.55];  (5) placing the respondent on probation in accord with [N.J.S.A. 9:6-8.56];  (6) requiring that an individual found to have abused or neglected a child accept therapeutic services, and this order may be carried out in conjunction with any other order of disposition.

The dispositional hearing is a critical stage in Title Nine proceedings and must be conducted “ ‘with scrupulous adherence to procedural safeguards,’ ” with the trial court's conclusions based on material and relevant evidence.   G.M., supra, 198 N.J. at 401 (citing N.J. Div. of Youth & Family Servs. v. A.R.G., 179 N.J. 264, 286 (2004));  N.J.S.A. 9:6-8.46(b), (c).

J.B. received no such procedural safeguards.   The resolution of whether F.M., Jr., could have been safely returned to the physical custody of his mother, as required by G.M., supra, 198 N.J. at 402, was procedurally improper since the trial court failed to provide a critical stage in a Title Nine proceeding.   J.B. should have been afforded the opportunity to present “material and relevant evidence” such as expert witnesses and other interested parties to testify on her behalf for the decision to be based on more substantive evidence.  Id. at 400.

On August 13, 2009, the fact-finding hearing was held before the trial judge where J.B. entered a stipulation of abuse or neglect and F.M., Sr., requested the dismissal of the litigation, as also requested by the Division in its court report.   J.B.'s counsel responded:  “[M]y client has a right to a dispositional hearing, wants a dispositional hearing, objects to the motion for dismissal.”   The court replied:

Okay. Well, I would not be dismissing the litigation today.   A dispositional hearing would have relevance relative to changing the current placement, and right now it is a placement with the father, a dispositional hearing would address should that placement be changed pending a permanency hearing that might permit the child ․ to be returned home to her mother.   I don't have that issue before me;  all I'm just addressing is relative to the motion to dismiss which I would not dismiss the litigation at this point in time.

However, in accordance with Title Nine, the trial judge was required to hold a dispositional hearing immediately after the conclusion of the fact-finding hearing.  N.J.S.A. 9:6-8.47(a).   Failure to proceed in that matter was in violation of J.B.'s right to a hearing to decide whether her child may safely be released to her custody.   See G.M., supra, 198 N.J. at 402.

Also, the trial court applied the wrong standard because it took into account the best interest of F.M., Jr. As stated above, a dispositional hearing was necessary to resolve whether reunification was attainable and safe.   Instead, the trial judge appears to have held a premature “permanency hearing” pursuant to N.J.S.A. 30:4C-61.2, which is part of Title Thirty, N.J.S.A. 30:4C-1 to -92.   The primary purpose of Title Nine is to provide “temporary remedies for child-abuse problems.”  N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 394 (1990).   In contrast, Title Thirty provides “a permanent remedy:  termination of parental rights and placement of the child under the guardianship of DYFS.” Id. at 394-95.

In sum, the trial court's finding “that the best interest is furthered by the plan put forth by the Division, namely to continue custody with [F.M., Sr.,]” contravenes the Supreme Court's holding in G.M., which expressly rejects the application of the best interests standard under Title Nine circumstances.   Since the trial court erred by failing to follow the proper procedures, in light of G.M., J.B. was deprived of her due process rights.   See N.J. Div. of Youth & Family Servs. v. J.D., 417 N.J.Super. 1, 22 (App.Div.2010) ( “Our conclusions in G.M. reflected the need for procedures compatible with the rigors of due process flowing to any party seeking to be heard prior to the court's modification of his or her substantive rights.”).

Next, J.B. submits that the case was prematurely terminated and the court failed to allow J.B. the time to rehabilitate herself.   F.M., Sr., responds that the trial judge gave sufficient time to show she was unwilling to remedy her drug addiction and points to N.J. Div. of Youth & Family Servs. v. R.G., 397 N.J.Super. 439, 447 (App.Div.2008), where we held that:

There also is no statutory bar to dismissing Title [Nine] litigation after placing physical custody of the child with the non-abusive parent following a period of DYFS supervision aimed at rehabilitating the abusive parent.   Once the court has determined that the best interests of the child are served by physical custody with one parent and liberal and unsupervised visitation with the other, nothing in Title [Nine] prevents termination of protective services litigation, or warrants continued DYFS intrusion into the familial relationship.

However, to the extent that this language is in direct contention with the Supreme Court's holding in G.M., requiring a dispositional hearing in all Title Nine actions before dismissing the case, R.G. has been rejected.   See G.M., supra, 198 N.J. at 405 n.4 (“To the extent the panel in [R.G.] expressed a different view, we disapprove.”).

Consistent with the opinion in G.M., we remand for a dispositional hearing to occur within sixty days to determine as of February 1, 2010, if F.M., Jr., could have been safely returned to J.B.'s custody.

Reversed. We do not retain jurisdiction.

FOOTNOTES

FN1. F.M., Jr., has resided with F.M., Sr., throughout this litigation..  FN1. F.M., Jr., has resided with F.M., Sr., throughout this litigation.

FN2. In light of our disposition of the case, we need not address defendant's Point II..  FN2. In light of our disposition of the case, we need not address defendant's Point II.

PER CURIAM